Judgment : Dt.13.7.2017

            This is a complaint made by (1) Smt. Chhavi Chandra alias Chabi Chandra, wife of Sri Gour Chand Chandra and (2) Arindam Chandra, son of Sri Gour Chand Chandra, both of 69/C, Peary Mohan Roy Road, P.S.-Chetla, Kolkata-700 027 against – (a) Sales Emporium (South), having its showroom at 226, Diamond Harbour Road, P.S.-Behala, Kolkata-700 060, OP No.1 and (b) Hitachi Home & Life Solutions (India) Ltd., having its office at 33, Kabir Bose Road, Kolkata-700 026, praying for an order directing the OPs to remove the defects in the AC Machine by providing necessary services for smooth and hastle-free running of the set, an order directing the OPs to replace the A.C.Machine with a new one if found incapable of giving satisfactory service, alternatively an order directing the OPs to refund the amount of Rs.43,500/- and an order directing the OPs to pay compensation of Rs.1,35,000/- for mental agony, pain, harassment and lowering of social prestige and litigation cost of Rs.25,000/-.

            In brief the facts are that OP No.1 is the authorized showroom, who deals with air conditioner of Hitachi company. OP No.2 is the manufacturer, supplier of Air Conditioner machine and deals with the business in the name and style of Hitachi Home & Life Solutions (India) Ltd. Complainant runs a business under the name and style of Joy Guru Foods & Confectioners having its show room 1, Hochiminh Sarani, Behala, Bakultala under P.S.-Sarsuna. Complainant was in need of an Air Conditioner for the show room and approached OP No.1 for purchasing of new split Air Conditioner machine and chose the brand of Hitachi. Complainant purchased the split Air Conditioner machine after paying Rs.43,500/- to OP No.1 on 17.11.2015. In addition to above, Complainant paid Rs.2,400/- for buying other accessories. The machine was duly installed on 20.11.2015. After installation, it was not functioning. But, due to winter season, Complainant managed the problem arising out of non-functioning of the A.C. Machine. Complainant reported the matter to the OP No.1 in the month of April, 2016. Complainant noticed that the A.C. machine was not working. The husband of the Complainant lodged complaint before the Customer Care and Complaint was registered as complaint No.16050604914 dt.6.5.2016. But the defect was not removed. OP No.2 went to the shop room of the Complainant for examining the A.C. machine and took it to the service centre for removal of the defect as it was within the period of warranty. After one day the said A.C. machine was again installed. But, no fruitful result took place. Complainant was suffering from lots of problems due to non-functioning of the A.C. machine. So, Complainant filed this case.

            OP No.1  filed written version and denied all the allegations. Further, OP No.1 has stated that Complainant has no locus-standi to file this case against him. It has also been stated that Complainant purchased the A.C. machine for using it in a shop room which is commercial in nature and so this Consumer Forum does not have any jurisdiction over the dispute. This OP has also stated that Complainant is not entitled to any relief and so the complaint should be dismissed.

            OP No.2 did not contest the case by filing written version. So, the case the is heard ex-parte against OP No.2.

Decision with reasons

            Complainant filed affidavit-in-chief to which OP No.1 filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP No.1 filed affidavit-in-chief to which Complainant filed questionnaire and OP filed affidavit-in-reply.

            Main point for determination as to whether the Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion, it appears that Complainant has prayed for an order directing the to remove the defects in the A.C.Machine, by providing necessary services for smooth running of the set or for replacement of the said A.C. Machine by payment of Rs.43,500/-.

            In this regard, it appears that the A.C. machine was purchased in November, 2015 and Complainant has filed this case rightly stated that due to winter season, the trouble could be detected in April, 2016. Complainant took this step for getting the defect removed. Thereafter, since defect could not be removed, Complainant filed this complaint.

            On perusal of affidavit-in-chief, questionnaire and affidavit-in-reply of respective parties, it is clear that OP No.1 as well as OP No.2 did act and conduct which created problem for the Complainant. A point raised by OP No.1 is that the A.C. Machine was purchased for commercial use is not sustainable in the context that if a person purchases the A.C. Machine for either at his house or at his shop room that is not covered under commercial purpose and is not contemplated in Consumer Protection Act. Furthermore, OP No.2 being such a bit company did not take any step for resolving the dispute raised by the Complainant. OP No.1 also cannot shirk the liability because it cannot take a plea that ‘I am only seller’. A distributor or seller has the liability because by selling any machine, the authorized dealer gets the commission and it is the bounden duty of the authorized dealer to help the consumer after making contact with the manufacturer and if he does not do so Consumer Protection Act will, of course, come into way.

            Accordingly, we are of the view that OPs are liable for resolving the grievance raised by the Complainant. Complainant has sought for direction to remove the defects in the A.C. machine by providing necessary services for smooth and hastle-free running of the same.

            In this regard, our view suggests that much has happened for getting the defect removed. But, OPs failed. As such, appropriate order would be to give a direction upon the OPs to replace the A.C.Machine with a new one within one month, in default, the OPs be made joint and severally liable for paying Rs.43,500/- to the Complainant within another one month.

            Complainant has prayed for compensation of Rs.1,35,000/- which is too much excessive and litigation cost of Rs.25,000/-.

            In this regard, it is stated that if the A.C.machine is replaced by the OPs within one month no liability to pay compensation and litigation cost can be imputed upon the OPs. But, if they fail, OPs can be made liable for paying Rs.10,000/- as compensation and Rs.5,000/- as litigation cost.

            Hence,

ordered

            CC/451/2016 and the same is allowed on contest against OP No.1 and ex-parte against OP No.2 in part. OPs are directed to replace the A.C.Machine within one month of this order, failing which they shall be liable to refund Rs.43,500/-, the price of the A.C.Machine to the Complainant within another one month with compensation of Rs.10,000/- and litigation cost of Rs.5,000/- within that period, in default the amount shall carry interest @ 10% p.a. from the date of order till realisation. The liability of OPs are joint and several.